Friday, February 18, 2005

New Bill Introductions

SB 67 SCHOOL DYSLEXIA TESTS To require public and chartered nonpublic schools to test students for dyslexia and related disorders and to provide intervention services to students identified as having dyslexia or a related disorder.

SB 69 RENEWABLE FUEL SOURCES To establish an annual renewable energy requirement for electric utilities and electric services companies that provide retail electric generation service in Ohio and to authorize the Public Utilities Commission to establish a system of renewable energy credits.

SB 70 MERCURY PRODUCTS To prohibit the sale and distribution of mercury-added products; to establish exemptions from that prohibition; to require labeling of all mercury added products and to establish other requirements concerning mercury and mercury-added products.

SB 71 CALAMITY DAYS To permit certain school districts and nonpublic schools located in areas flooded during the 2004-2005 school year to count time that schools are in session beyond the required minimum number of hourse in order to make up 'calamity days' missed in excess of the number of days permitted by law and the number of days specified in their contingency plans and to declare an emergency.

HB 70 MILITARY TAX EXEMPTIONS To authorize boards of county commissioners to exempt from taxation the homesteads of members of the National Guard and reserve components of the Armed Forces who have been deployed outside the state.

HB 71 MILITARY SERVICE CREDIT To permit a member of the Public Employees Retirement System to purchase military service credit for inactive duty in the Ohio National Guard or reserves.

HB 72 WORKERS' COMPENSATION To make various changes to the Workers' Compensation Law.

SoS Legal Tab Reaching $100,000

Pieced together from a Gongwer News Service article:

With all of the litigation the state of Ohio, and in particular Secretary of State Kenneth Blackwell has been involved in lately, the legal bills are mounting. The latest problem to confront is something I've already blogged on before, the voting machine directive issued by Mr. Blackwell that a few counties took umbrage with and are fighting in court. Attorneys for the Franklin County Board of Elections had wanted to depose Mr. Blackwell yesterday, but Franklin County Common Pleas Judge Beverly Pfeiffer agreed to block the deposition.

Secretary Blackwell announced the appointments of Richard Lillie, a former assistant federal attorney and common pleas judge, and Robert Destro, a professor of law at the Catholic University of America in Washington, D.C. as special counsel. Mr. Lillie, a partner at the law firm of Benesch, Friedlander, Coplan & Aronoff, will be paid at a rate of $175 an hour with a budget up to $20,000. Mr. Lillie successfully argued in support of Ohio's provisional ballot law in the 6th U.S. Circuit Court of Appeals last year. He has an ongoing contract for legal advice and consultation, and has submitted $96,313 in bills through the attorney general's office thus far in fiscal year 2005.

Chief Justice Moyer's Remarks at Legislative Seminar

In remarks at a legislative seminar sponsored by the Associated Press yesterday, Chief Justice Moyer stated:

While the state's school funding system remains unconstitutional as a result of the final Ohio Supreme Court ruling in the DeRolph litigation, there never was a chance of the court finding the General Assembly in contempt.

The court intends to hire a full-time employee to work with an existing Commission on Professionalism to develop programs that will encourage civility among attorneys.

Declined comment on the court's decision to hear an appeal in a lawsuit that education organizations filed challenging the state's charter school system.

Was quick with a two-word answer when asked if now is the time to revisit a constitutional provision that requires judges to retire at age 70. "Sure is," said Mr. Moyer, who turns 66 in April.

Recently Introduced Legislation

For the full text of any of the below, go the General Assembly's web site. Check out HB 60. It attempts to curtail the partisanship of a Secretary of State for either candidates or issues.

SB 56 SCHOOL FACILITIES COMMISSION To enact as a separate act the provision of law exempting employees of the Ohio School Facilities Commission from the collective bargaining law.

SB 57 OUTSOURCING EDUCATION To create the Outsourced Worker Assistance Fund to provide financial assistance to outsourced individuals to enroll in postsecondary education programs and to make an appropriation.

SB 58 LEGISLATIVE AUDIT COMMISSION To create the Legislative Audit Commission and the office of Legislative Auditor to conduct program evaluations of state agencies and of specified state-funded or state-operated programs and activities and to make recommendations to the General Assembly on ways in which the agencies, programs, or activities can operate more efficiently.

SB 59 TAX REFUNDS To regulate under the Superintendent of Financial Institutions the facilitation of refund anticipation loans and refund anticipation checks; specifying loan or check transaction requirements; requiring that specified disclosures be made to consumers; and specifying civil remedies and administrative penalties.

SB 61 SKI OPERATOR LIABILITY To modify duties and liabilities of ski operators and skiers, including duties and liabilities relating to the use of freestyle terrain and tubing parks in ski areas.

SB 62 LONG-TERM CARE To establish a program for providing long-term care consultations to residents and potential residents of nursing facilities and to require the identification of options for financing Medicaid long-term care services according to individual needs and preferences, including preferences for home and community-based services.

SB 63 CHILD PLACEMENTS To provide for voluntary placement agreements for children with mental illness, to prohibit a public children services agency from requiring that a parent or custodian relinquish legal custody in order to access services under a voluntary placement agreement, and to revise the law governing county families and children first councils.

SB 64 ESTATE TAXES To exempt from the estate tax certain contributions to a trust or fund attributable to a decedent's former employer.

SB 65 SPECIAL EDUCATION VOUCHERS To establish the Special Education Scholarship Program to provide scholarships for handicapped children to attend alternative public and nonpublic special education programs.

HB 58 AMUSEMENT PARK POLICE To the appointment and commissioning of amusement park police officers and to the training of those officers.

HB 59 LANDFILL SITING CRITERIA To require the Director of Environmental Protection to adopt rules establishing siting requirements applicable to construction and demolition debris facilities that are at least as stringent as siting criteria applicable to solid waste facilities.

HB 60 SECRETARY OF STATE To prohibit the Secretary of State from serving on the campaign committee of a candidate or a committee supporting or opposing a ballot issue or question, and from soliciting contributions, making contributions, and speaking in support of or opposition to any candidate or ballot issue or question.

HB 61 TAX EXPENDITURE REVIEW To provide for appraisal of the effectiveness of tax expenditures and for their expiration after appraisal if not renewed.

HB 62 RETIREMENT CREDIT To allow magistrates to purchase additional service credit in the Public Employees Retirement System.

HB 63 DOG SALES To require certain persons who sell dogs not older than fifteen months of age to provide remedies to a buyer of a dog that exhibits a congenital defect or common hereditary disorder, dies from a congenital defect or common hereditary disorder, or is discovered to be of a different registration status with a pedigree organization than the seller represented.

HB 64 AMUSEMENT RIDES To make changes in the Amusement Rides Law governing electrical grounding and connections of an amusement ride.

HB 65 INDUSTRIAL COMMISSION BUDGET To allow the Industrial Commission to make contracts concerning telecommunications and computer services and to make appropriations for the Industrial Commission for the biennium beginning July 1, 2005, and ending June 30, 2007, and to provide authorization and conditions for the operation of Commission programs.

HB 66 BIENNIAL BUDGET To make operating appropriations for the biennium beginning July 1, 2005 and ending June 30, 2007, and to provide authorization and conditions for the operation of state programs.

HB 67 BWC BUDGET To transfer the Public Employees Risk Reduction Program and the Occupational Safety and Health Act On-site Consultation Program from the Department of Commerce to the Bureau of Workers' Compensation, to make appropriations for the Bureau of Workers' Compensation for the biennium beginning July 1, 2005, and ending June 30, 2007, and to provide authorization and conditions for the operation of the Bureau's programs.

HB 68 ODOT BUDGET To make appropriations for programs related to transportation and public safety for the biennium beginning July 1, 2005, and ending June 30, 2007, and to provide authorization and conditions for the operation of those programs.

Governor Taft Signs Bills

Today's Supreme Court Oral Arguments

The following are scheduled for today:

Community First Bank & Trust v. Dafoe, Case no. 2004-1913ISSUE: Is a court order that stays a creditor's claim against the personal guarantors of a debt pending the outcome of the actual debtor's bankruptcy action a ‘final, appealable order?'

Clark v. Risko [Knox Community Hospital], Case no. 2004-0284ISSUE: When a hospital uses independent contractors rather than employees to provide a medical service, can an Ohio court find the hospital ‘vicariously liable' to a patient for injuries allegedly resulting from a contractor's negligence when the contractor himself was not named as a defendant in the patient's lawsuit and was never found to be directly liable for the patient's injuries?

Rosette v. Countrywide Home Loans and Piro v. National City Bank, Case nos. 2004-0524 and 2004-0525ISSUE: An Ohio statute allows homeowners who pay off residential mortgages to file a civil action for $250 in “damages” against the mortgage holder if the holder fails to record satisfaction of the mortgage within 90 days of receiving full payment. Is the remuneration authorized under this statute a “penalty or forfeiture” subject to a one-year statute of limitations; or is it a civil liability award for harm caused by the lender to the homeowner, a type of claim which may be asserted for up to six years after the cause of action arose?

Asset Acceptance LLC v. Mack, Case no. 2004-0851ISSUE: When the judgment of a court provides a monetary award plus interest on that amount until the balance is paid, and that unsatisfied judgment later becomes dormant for failure of execution by the creditor, does a subsequent revival of the judgment entitle the creditor to accrued interest from the original date of judgment, including the period during which the judgment was dormant?

When is One Record Not Really One Record...

...when it's 860 records and the damages assessed for destroying them is $1,000 per record. The Supreme Court of Ohio has been asked by the federal 6th Circuit Court of Appeals as to what constitutes a "record" under the civil forfeiture provision of the Ohio Public Records Act. It seems some city of Akron employees were being granted compensatory time in lieu of overtime pay, a no-no for non-exempt employees under the FLSA. A couple of the employees sued and the comp time records were destroyed by city employees. The workers were awarded $1,908 for underpayment of their overtime, but granted $1,000 of punitive damages for each comp time form destroyed, all 860 of them. On appeal, the 6th Circuit has asked the Supreme Court of Ohio to clarify the "record" question before rendering their own decision. Oral arguments were held yesterday. The case is Kish & Elder v. City of Akron, Case no. 2004-0738, and streaming video of the arguments can be found here.

Tuesday, February 15, 2005

Budget Bill Link

Election Cases Update

Case No. 04-2088 (motion for sanctions against attorneys who filed the original actions disputing the Ohio presidential election results)- Rep. John Conyers' (D-Mi.) amicus memo in support of the attorneys was filed.- Sen. Russell Feingold (Wi.) filed a motion for leave to join in the Conyers memo.

Case No. 04-2106 (same as above expect the matter concerns the dispute of the Ohio election for Chief Justice of the Supreme Court of Ohio)- nothing new

Later

UPDATE on this update: Gongwer News Service reports that Senator Feingold and 17 House members-including U.S. Rep. Dennis Kucinich (D-Cleveland)-filed a motion Monday asking to submit arguments in opposition to sanctions. I have procured a copy of the Conyers memo. If anyone wants to see it, please e-mail me.

New Motion and Procedural Rulings

The Supreme Court of Ohio issued a number of rulings yesterday. Included within them are two disciplinary cases, one where a certified copy of a judgment entry of a felony conviction was received by the court, and another one where a determination of default on child support was received. Both attorneys were suspended from the practice of law for an interim period, and the court referred the matters to the Disciplinary Counsel for investigation and commencement of disciplinary proceedings. Other matters covered by yesterday's rulings include miscellaneous dismissals and medication referrals.

New Board Opinions

SYLLABUS:An attorney who performs research and writing on a contract basis to other attorneys, but who is not engaged by, does not meet with, and does not offer advice to clients is not considered to be engaged in the practice of law and is not subject to the professional liability insurance notice requirements of DR 1-104.

SYLLABUS:It is proper for an association of judicial employees (Ohio Association for Court Administration) to charge vendors a fee to set up a booth at the association’s educational conference to display products or services of interest to members.And, it is proper for an association of judicial employees (Ohio Association for Court Administration) to permit vendors to sponsor a meal, reception, open house, or other similar activity at the association’s educational conference and discuss their products or services at the meal, reception, open house, or activity.Of course, there must be no strings attached to the vendor’s support, in particular, no overt or sub rosa agreements that a judicial employee will try to influence a court to use a vendor’s products or services.

SYLLABUS:Counsel representing an interest adverse to a corporation may communicate without the consent of a corporation’s lawyer with certain current employees and former employees of the corporation, even when corporate counsel asserts blanket representation of the corporation and all its current and former employees.

Monday, February 14, 2005

Some more blog news

In the category of blowing my own horn:

I wrote an article for Columbus Bar briefs entitled "Keep It Simple." It is in the Winter 2005 issue at page 10. There is not a direct link to the article, but there is a link to the entire issue. The article was also picked by the State, Court and County Law Libraries Special Interest Section's Winter 2005 newsletter at page 20. It was written a few months back, but if you're relatively new to the blogosphere, it may provide a few tips.

GMail

Everybody seems to be getting on the GMail bandwagon. When I received an invitation to join about 6 months ago, I also received 6 invitations that I could in turn pass out to other interested parties. Now I have a whopping 50 in my bank that I can pass out. If you are reading this and want to experience the joys of GMail, send an e-mail to me at my GMail account and I'll send you an invite. You will get an astounding 1GB of free space with the account, and it can serve as a pseudo online storage facility. Simply attach a file, e-mail it to yourself, and keep it within a folder. You can then access it anytime you want.

New Privacy Act Introduced

The Library, Bookseller, and Personal Records Privacy Act, S. 317, was introduced last week. It would return a higher legal standard ("specific and articulable standard") to requests for business records (including library and bookstore records, medical records etc.) that the low "relevance" standard that the Patriot Act put in place.

Marriage Amendment v. Domestic Violence: No Decision

Cuyahoga Common Pleas Judge Stuart Friedman did not have to decide whether the Cuyahoga County Public Defender was correct in claiming that unmarried, unrelated persons charged with violating the domestic violence law could not be prosecuted because of Issue 1. Why was that? Judge Friedman pointed out that the offense in question occurred last August. The amendment barring same-sex marriage and prohibiting the government from recognizing a legal status for relationships of unmarried persons that intends to approximate marriage did not take effect until December 2nd.

Carrie Davis, staff attorney for the ACLU-Ohio, said the organization was pleased the judge did not dismiss the domestic violence charges. "However, the big question still remains. Judge Friedman did not reach the question of whether Issue 1 does or does not preclude domestic violence prosecution against unmarried individuals," she said in an interview.

Ms. Davis said similar defense motions are pending in other courts. "I've heard it's close to a dozen in the Cleveland area. We're trying to track how many are showing up around the state," she said. "At some point, probably in the not too distant future, we will have a ruling on one of those."